Smith v. State

• Decision Date: 08 May 1886
• Citation: 17 S.W. 471
• Court: Texas Court of Appeals
• Parties: SMITH v. STATE.<SMALL><SUP>1</SUP></SMALL>

17 S.W. 471

SMITH v. STATE.¹

Court of Appeals of Texas.

May 8, 1886.

Appeal from district court, Denton county; F. E. PINER, Judge.

Indictment of J. M. Smith. Verdict of guilty of murder in the first degree. Defendant appeals. Affirmed.

The indictment charged that "J. M. Smith, on the 13th day of October, in the year of our Lord 1885, with force and arms, in the county and state aforesaid, did then and there unlawfully, willfully, and with his express malice aforethought, kill and murder one I. N. Fowler, by then and there shooting him * * * with a gun, contrary," etc. In his speech to the jury defendant's attorney said, "Why did not the state prove the dying declarations" of deceased? "His statements, when about to die, would have been more worthy of belief than one made under excitement." The counsel for the state in his address replied that evidence of the dying statement of deceased was offered, and rejected on defendant's objection, and that, "if that statement was more reliable and was different from" the others, "why did they object to the proof?"

Owsley & Walker and A. W. Robertson, for appellant. J. H. Burts, Asst. Atty. Gen., for the State.

WHITE, P. J.

1. Defendant's motion to quash the indictment was properly overruled, it being in the usual form for murder in the first degree, and sufficiently specific in its allegations. Willson, Crim. Forms, No. 388, p. 173.

2. Defendant made a motion for a change of venue. One Crutcher made affidavit controverting the two compurgators' means of knowledge of the facts stated by them in their affidavit in support of the motion. Exceptions to the sufficiency of his affidavit were made by the defendant upon the grounds: (1) That his affidavit did not attack the credibility of said compurgators. (2) It does not sufficiently controvert the compurgators' means of knowledge, by stating facts showing they were mistaken or misinformed as to the case. (3) Because the affiant, Crutcher, was not himself such credible person as the law requires to raise this issue, for the reason that he was the physician who attended deceased in his last illness, and is a witness for and interested in the prosecution of the cause. Article 583 of the Code of Criminal Procedure provides that the credibility of the persons making affidavit for a change of venue, or their means of knowledge, may be attacked by the affidavit of a credible person, and the issue thus formed shall be tried and determined by the judge, granted or refused, as the law and facts shall warrant. Two modes are thus provided for controverting the motion: (1) By attacking the credibility of the compurgators; (2) by attacking their means of knowledge. Either one of these two grounds is, of itself, sufficient without the other, to form the issue to be tried. Davis v. State, 19 Tex. App. 201; Carr v. State, Id. 635; and Pierson v. State, 21 Tex. App. 14, 17 S. W. Rep. 468. The controverting affidavit in this instance was sufficiently explicit in its statements traversing the means of knowledge of said compurgators. As to the last ground of the motion, to-wit, the fact as to whether or not the controverting affiant, Crutcher, was himself a credible person, this was a matter to be ascertained and determined by the judge in the court below. There is not a particle of testimony, one way or another, in this record with regard to his credibility. The fact that he was a physician who attended the deceased in his last illness, nor the fact that he was a witness for the state in the case, would certainly neither, in themselves, tend to establish that he was not a credible person; nor would they tend in the slightest degree to disprove the statements made by him in his controverting affidavit. The court did not err in overruling the motion for a change of venue.

3. A motion was also made to quash the special venire. As ground for this motion it was stated that the names for the special venire were not drawn in open court from the names selected by the jury commissioners to do jury service for the term, as is required by the statute, (article 610, Code Crim. Proc.¹) and because it appears from the return of the sheriff thereon that one of the 60 men named in the venire was dead, and that another was in the Indian Territory at the time said venire was ordered, and that, therefore, the same was not a venire for 60 men, as ordered by the court. With regard to the first ground of the motion there is no testimony going to show whether the selecting of the special venire was had by drawing the names, in open court, of persons selected by the jury commissioners to do jury service or not. Where there are no jurors selected by the jury commissioners, as provided in article 610, Code Crim. Proc., then the court can order the requisite number of jurors to be summoned from the body of the county. Code Crim. Proc. art. 611; Weaver v. State, 19 Tex. App. 547. Inasmuch, however, as the writ of special venire in the case required the sheriff to summon the 60 persons whose names appeared on the list attached to the writ, we think it is sufficiently manifest that these 60 men had already been selected before the writ issued; and we will further presume, in the absence of anything to the contrary, that they had been selected in the manner required by law, — that is, that they had been drawn from the selected jurymen for the term in open court. As to the objections to the two venire-men named on the list, — that one was dead, and that one was in the Indian Territory, — it may have been, and doubtless was, impossible to know these facts when the venire was ordered, and we cannot well see how such unforeseen contingencies can well be guarded against or avoided. Such objection is not sufficient to authorize nor warrant the quashing of the venire. It was not error to overrule the motion to quash. There is no merit in appellant's third bill of exceptions. The bill itself shows that when the names of jurors who had already been passed upon on the original venire were reached on the call of the second special venire, they were made to stand aside by the court, and neither the state nor the defendant was required to challenge or pass upon them.

4. We are of the opinion that the appellant was sufficiently arraigned in the court below before the trial was proceeded with. Code Crim. Proc. arts. 509, 512, 516; Willson, Crim. Forms, 685, p. 321. The recitals of the entry of the arraignment render it clear that the indictment must have been read to the appellant before he was required to plead thereto, and this is substantially all that the statute requires with regard to the entry of the facts upon the minutes.

5. Appellant's fourth and fifth bills of exception have reference to the admission in evidence of a certain diagram of the locus in quo, drawn by the witness Ball. It is insisted that the diagram was not properly admitted in evidence. Its correctness had already been testified to by the witness Ball, before it was introduced in evidence, and before it was used by the other witnesses in connection with their testimony. Mr. Wharton says: "We have already had occasion to observe that parol evidence may be received of buildings, monuments, and other objects which cannot be brought into court. For this purpose, authenticated plans or diagrams of the locus in quo are admissible." Whart. Crim. Ev. (8th Ed.) § 545; Gavigan v. State, 55 Miss. 533.

6. Over objections of defendant, as shown by the sixth and seventh bills of exception, the prosecution was permitted to prove, by the witnesses James Garrett and L. R. Helms, the statements made by the deceased to them within some 10 or 15 minutes after he was shot, as to how and by whom he was shot, Under the facts detailed by the witnesses, in connection with the...